Opinion
37 CA 17–01372
02-09-2018
Charlie ZANGHI and Shannon Zanghi, Plaintiffs–Respondents, v. James L. DOERFLER and Town of Amherst, Defendants–Appellants.
CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (MICHAEL J. CHMIEL OF COUNSEL), FOR DEFENDANTS–APPELLANTS. STAMM LAW FIRM, WILLIAMSVILLE (MELISSA A. STADLER OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (MICHAEL J. CHMIEL OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
STAMM LAW FIRM, WILLIAMSVILLE (MELISSA A. STADLER OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
PRESENT: SMITH, J.P., CENTRA, CARNI, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Plaintiffs commenced this action seeking damages for injuries they sustained when a dump truck owned by defendant Town of Amherst (Town) and operated by defendant James L. Doerfler rear-ended their vehicle while they were stopped at an intersection. Defendants moved for summary judgment dismissing the complaint on the ground that the "reckless disregard" standard of care pursuant to Vehicle and Traffic Law § 1103(b) applies, and they contended that they established as a matter of law that Doerfler's conduct was not reckless. Plaintiffs cross-moved for partial summary judgment on negligence, contending that the reckless disregard standard of care in Vehicle and Traffic Law § 1103(b) is not applicable to this case, and that the rear-end collision established defendants' negligence as a matter of law. Supreme Court denied defendants' motion and granted plaintiffs' cross motion. We affirm.
We reject defendants' contention that Doerfler was "actually engaged in work on a highway" at the time of the collision (id. ). Instead, Doerfler was traveling between work sites and the dump truck was empty. He was not plowing, salting, sanding or hauling snow. Thus, "the so-called ‘rules of the road’ exemption contained in Vehicle and Traffic Law § 1103(b)" is inapplicable to Doerfler's operation of the dump truck at the time of the rear-end collision, and the proper standard of care is negligence ( Davis v. Incorporated Vil. of Babylon, N.Y., 13 A.D.3d 331, 332, 786 N.Y.S.2d 550 [2d Dept. 2004] ; see Hofmann v. Town of Ashford, 60 A.D.3d 1498, 1499, 876 N.Y.S.2d 588 [4th Dept. 2009] ).We reject defendants' further contention that the court erred in granting plaintiffs' cross motion. It is well settled that "a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle" ( Pitchure v. Kandefer Plumbing & Heating, 273 A.D.2d 790, 790, 710 N.Y.S.2d 259 [4th Dept. 2000] ; see Leal v. Wolff, 224 A.D.2d 392, 393, 638 N.Y.S.2d 110 [2d Dept. 1996] ). "In order to rebut the presumption [of negligence], the driver of the rear vehicle must submit a non[ ]negligent explanation for the collision" ( Pitchure, 273 A.D.2d at 790, 710 N.Y.S.2d 259 ; see Herdendorf v. Polino, 43 A.D.3d 1429, 1429, 842 N.Y.S.2d 849 [4th Dept. 2007] ), and we conclude that defendants failed to submit such an explanation.
Defendants' emergency doctrine contention, raised for the first time on appeal, is not properly before us (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.